Secretary of State for the Home Department v MK (Tunisia)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Rix,Lord Justice Lloyd |
| Judgment Date | 25 March 2011 |
| Neutral Citation | [2011] EWCA Civ 333 |
| Docket Number | Case No: C4/2010/2146 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 2011 |
[2011] EWCA Civ 333
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
Mr Justice Collins
Before: Lord Justice Pill
Lord Justice Rix
and
Lord Justice Lloyd
Case No: C4/2010/2146
Tim Eicke (instructed by the Treasury Solicitor) for the Appellant
Raza Husain QC and Amanda Weston (instructed by Birnberg Pierce & Partners) for the Respondent
Hearing date: 18 February 2011
Lord Justice Pill:
This is an appeal by the Secretary of State for the Home Department ("the Secretary of State") against a decision of Collins J on 26 August 2010 declaring that MK ("the respondent") has an in country right of appeal against the decision of the Secretary of State to cancel his leave to remain and is also entitled to return to the United Kingdom to exercise that right. It was further ordered that the respondent's indefinite leave to enter should not lapse by operation of article 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000 ("the 2000 Order") pending final determination of the claim or further order. The judge granted permission to appeal to this court.
The facts
MK is a Tunisian national who arrived in the United Kingdom in 2001 and claimed asylum. On 2 October 2001 he was granted refugee status and indefinite leave to enter the United Kingdom. He was issued with a travel document under article 8 of the Convention Relating to the Status of Refugees (1951), and lived with his wife and daughters in Manchester between 2001 and 2007.
On 6 November 2007, MK was arrested pursuant to a European Arrest Warrant issued by an Italian court. Extradition was ordered under section 21(3) of the Extradition Act 2003 on 20 May 2008 and an appeal to the High Court against the order of the District Judge was dismissed. A further application by MK to the High Court was refused and on 1 November 2008 he was extradited to Italy.
By a letter of 14 April 2010, the Secretary of State stated that she was considering revoking the respondent's refugee status on the ground that "there are reasonable grounds for regarding him as a danger to the security of the United Kingdom" (rule 339A of the Immigration Rules). It was stated:
"The UK Border Agency ["The Agency"] has reason to believe that you have been involved in extremist radicalisation and facilitation. Your presence in the UK would therefore be considered not conducive to the public good for reasons of national security."
Representations were made to the Agency on the respondent's behalf.
On 8 July 2010, the respondent was acquitted in Italy of all terror-related charges. He was convicted of a charge of falsely procuring a document but, because of time spent on remand, the resulting sentence had been served. He was re-detained in an Immigration Detention Centre and expulsion orders were made.
On the following day, and following representations made on the respondent's behalf, the European Court of Human Rights gave an indication to the Government of Italy, under rule 39 of the Rules of Court, that the respondent (and others) should not be deported to Tunisia until 21 July. That interim measure was subsequently prolonged indefinitely. When the respondent's appeal against the District Judge's order in relation to extradition was dismissed in 2008 the Court found that the Italian authorities could be relied on not to deport the respondent to Tunisia.
The respondent's subsequent movements need not be described comprehensively for present purposes. On 7 August 2010, his release was ordered by the Italian court and he was issued with a document requiring him to leave Italy within 5 days. He entered Switzerland by train and, on 25 August 2010, was arrested at Zurich airport at a check in desk for a flight to Dublin. He was told he would be sent to the United Kingdom and was arrested on arrival at London City Airport early on 27 August, that is a day after Collins J had made his order.
In the afternoon of 27 August, the respondent was told that he was being sent back to Switzerland and believes he was booked on a flight to Zurich. Collins J granted an injunction prohibiting the Secretary of State from removing the respondent from the United Kingdom pending final determination of his claim for judicial review or further order. An application to discharge that injunction was subsequently refused.
In the meantime, by letter dated 16 July 2010 received by the respondent's solicitor a week later, the Agency cancelled the respondent's indefinite leave to enter, exercising powers under article 13(7) of the 2000 Order. It is accepted that, prior to the cancellation, the leave to enter was extant. The grounds stated in the minded to revoke letter were substantially repeated. The respondent was told:
"You have the right to appeal against the decision to cancel your indefinite leave to enter in the United Kingdom under section 82(1) of the Nationality, Immigration and Asylum Act 2002 ["the 2002 Act"]. For the purpose of the appeal the decision to cancel leave is treated as a decision under section 82(2)(e) of the 2002 Act. Any appeal against this decision may only be brought from outside the UK."
By letter of 28 July 2010, it was stated that the indefinite leave to enter had been cancelled under article 13(7)(a) of the 2000 Order, thereby correcting an earlier reference to sub-paragraph (b). The power to cancel the leave to enter of a person outside the United Kingdom may be exercised by an Immigration Officer. It was stated:
"There is no statutory right of appeal against the Home Secretary's decision to exclude [the respondent] from the United Kingdom, but he is entitled to an out country appeal against the decision to cancel his ILE."
This is not an appeal against the underlying decision to cancel leave to enter. The issue is whether the respondent is entitled to an in country appeal against the decision to cancel his indefinite leave to enter and to enter for the purpose of exercising it. The advantages of bringing an appeal from within the jurisdiction are set out in a statement by the respondent's solicitor and the Secretary of State has not challenged the reality of these advantages.
Proceedings for judicial review were issued on 28 July 2010 and on 3 August 2010 permission to apply on the ground relating to an in country right of appeal was granted. The application on other grounds was stayed by consent on the basis that the Secretary of State will issue a fresh decision letter cancelling leave to enter, if so minded, within 7 days of the final determination of the present proceedings. That would enable the respondent to appeal against the decision, without being out of time.
The statutory scheme
The issue is one of statutory construction. For the Secretary of State, Mr Eicke accepts that, by virtue of section 82 of the 2002 Act, the respondent has a right of appeal against the cancellation of the right to enter. Section 82 provides, in so far as is material:
" E+W+S+N.I.(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part 'immigration decision' means—
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
…"
Mr Eicke accepts that the "cancellation" directed in the Secretary of State's letters of July 2010 is a "variation" of the right to enter within the meaning of section 82(2)(e) of the 2002 Act. It gives rise to a right of appeal under that paragraph. The letter of 28 July also stated:
"The Home Secretary has certified under section 97(3) of the Nationality, Asylum and Immigration Act 2002, the decision to cancel his ILE on the basis that it was taken wholly or partly in reliance on information which in her opinion should not be made public in the interest of national security. This means that should [the respondent] wish to appeal against the decision, the appeal will be heard by the Special Appeals Immigration Commission (SIAC)."
The issue turns primarily on the construction of section 3D of the Immigration Act 1971 ("the 1971 Act") and section 92 of the 2002 Act. Section 3D of the 1971 Act as amended provides:
"(1) This section applies if a person's leave to enter or remain in the United Kingdom—
(a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or
(b) is revoked.
(2) The person's leave is extended by virtue of this section during any period when—
(a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or
(b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(3) A person's leave as extended by virtue of this section shall lapse if he leaves the United Kingdom."
Section 92 of the 2002 Act, as amended, provides at sub-sections (1) and (2):
"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j)."
The subsequent sub-sections of section 92 specify other...
To continue reading
Request your trial
-
E1/(Os Russia) v Secretary of State for the Home Department
...for an adjournment made on 23 rd March 2011 was refused. 11 On 25 th March 2011 this Court gave judgment in Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333 (" MK"). The Court upheld the judgment of Collins J dated 26 th August 2010, reported at [2010] EWHC 236......
-
The Queen (on the application of YZ (China)) v Secretary of State for the Home Department
...that the appellant be excluded from the United Kingdom on national security grounds. On the basis of the decision of Collins J in MK (Tunisia) [2010] EWHC 2363, as upheld by the Court of Appeal at [2011] EWCA Civ 333, the appellant had a limited period within which he was entitled to enter......
-
The Queen (on the application of Kevin Kinyanjui Kiarie) v The Secretary of State for the Home Department
...great majority of cases it is the end of the appeal." Reference is also made to the observations of Collins J in R (MK) Tunisia)) v Secretary of State for the Home Department [2010] EWHC 2363 (Admin), as endorsed by the Court of Appeal in R (E (Russia)) [2012] EWCA Civ 357, [2012] 1 WLR 31......
-
The Queen (on the application of C1) v Secretary of State for the Home Department
...under section 82(1) against that variation or revocation was pending. R (MK (Tunisia)) v Secretary of State for the Home Department [2011] EWCA (Civ) 333; [2012] 1 WLR 700 concerned the cancellation of the claimant's non-lapsing indefinite leave to enter under article 13(7). The Secretary......